1. Pursuant to the permission granted to it by the Medical Council of
India (MCI), the respondent Jamia Hamdard (Hamdard University)
invited online applications for admissions to its MBBS Programme, under
general category as well as in management quota. The
petitioner/appellant Shariq Rehman applied on 27.06.2012, for admission
to the aforesaid programme, in management quota as well as in general
category. The petitioner/appellant appeared in the entrance examination
conducted by the said university and his name appeared in the fifth
selection list, under the management quota. On 11th August, 2012 the
appellant appeared for counseling and the original certificates along with
demand draft of Rs.15 lacs for admission in the management quota were
deposited by him on 13th September, 2012. However, the
petitioner/appellant was not permitted to attend the classes apparently on
the ground that he was not eligible for being considered for admission on
the date of application form was filled up by him. This is also the case of
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the respondent that the petitioner/appellant had submitted a false
declaration in the application form, which would disentitle him from
admission to the said course. According to the respondent, the minimum
marks required for admission to the aforesaid course were 50%, the
appellant had failed in Chemistry in the first attempt, but while
submitting the application form he concealed this fact and claimed that
the result of the qualifying examination was awaited. This is also the case
of the respondent that even after re-evaluation, the petitioner/appellant
having secured less than 50% marks, he is not entitled for admission to
the aforesaid course. The case of the petitioner/appellant in this regard is
that he belongs to OBC category and the minimum marks required for
admission in the said category being 40%, he was eligible for admission
to the MBBS course.

2. The learned Single Judge who heard the writ petition, declined to
grant any interim relief to him observing that having secured only 26%
marks in Chemistry the petitioner was ineligible for admission. He further
observed that the petitioner/appellant had made a false declaration in the
application form when he claimed that his result was still awaited.
LPA 740/2012 and WP(C) 5986/2012 Page 3 of 12

3. LPA 740/2012 was filed by the appellant challenging the order
dated 15th October, 2012 whereby the learned Single Judge had declined
to grant any interim relief to him. During the pendency of the writ
petition, some of the successful candidates in the management quota were
impleaded as respondents No.4 to 13 in the writ petition.

Vide order dated 8th November, 2012, we directed that the writ
petition be also listed along with LPA 740/2012. With the consent of the
parties, we heard arguments in the main petition on 28 th January, 2013.

4. In its counter-affidavit filed in the writ petition, respondent no.3,
MCI has stated that as per its regulations, the minimum marks required in
the qualifying examination are 50% for the general category candidates,
45% for physically disabled candidates and 40% for SC/ST/OBC
candidates. This is the case of the MCI that the admission has to be made
strictly on the basis of merit and there can be no deviation from the
regulations made in this regard. It is also stated in the reply filed by the
MCI that all admissions in medical colleges have to be made strictly in
accordance with time schedule prescribed by the MCI and the
admissions, in violation of the regulations framed by the said Council are
not permissible. It is also stated that Graduate Medical Education
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Regulation, require 75% attendance from each student of MBBS course
before he/she appears in the examination, the deadline for admission in
MBBS course had been fixed as 30th September and it is not possible to
complete the syllabus even by holding extra classes considering rigorous
teaching and training schedule of MBBS course.

5. As per Regulation 4(3) of Regulations framed by the Medical
Council of India in the matter of admission and selection to medical
courses, the admission in MBBS courses cannot, in any case, be made
after 30th September of the year in which the academic session
commences. The deadline for the admissions fixed in the aforesaid
regulations being sacrosanct, it is not open to the Court to direct
admission on expiry of the aforesaid deadline.

In State of Bihar & Ors. v. Dr. Sanjay Kumar Sinha & Ors.
(1990) 4 SCC 624, Supreme Court took exception to the non-adherence to
the time schedules and reiterated that the admissions to medical colleges
and post-graduate courses are governed by the orders of the Apex Court
and the Regulations made by the Medical Council of India, which must
be strictly followed.

LPA 740/2012 and WP(C) 5986/2012 Page 5 of 12

In Medical Council of India v. Madhu Singh & Ors. (2002) 7
SCC 258, Supreme Court declared that mid-stream admissions should not
be permitted. Noticing the practice of compassion in review of such
admissions, the Court also held that late or mid-stream admission, even
just four months after beginning of the classes, cannot be permitted.

In Mridul Dhar (Minor) & Anr. v. Union of India & Ors (2005) 2
SCC 65, Supreme Court applied the schedule notified by the Medical
Council of India (MCI) in Appendix 'E' of the Graduate Medical
Education (Amendment) Regulations, 2004 and directed its strict
adherence and clarified that adherence to the time schedule by everyone
was a paramount consideration. The Court issued a specific direction to
all the State functionaries to adopt the said time schedule.

In view of the mandate of Regulations framed by MCI and
authoritative pronouncements of Supreme Court, no directions for
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admissions of the appellant to the MBBS course of respondent No. 1 can
be passed at this stage.

6. Yet another requirement of MCI Regulations is that the person
taking admission in such a course must have at least 75% attendance in
the academic year. Since we are already in the month of February, it will
not be possible for the appellant to achieve the required percentage of
attendance even if he is forthwith given admission to MBBS course. This
is yet another reason why we cannot direct admission of the appellant at
this stage.

7. We cannot direct admission of the appellant to the next academic
year since he will be required to compete with other candidates who
appear in the entrance examination to be conducted for the next academic
year.

8. The learned senior counsel appearing for respondent No.1
submitted that the appellant made a misrepresentation to the University
when he stated in the application form, seeking admission to MBBS
course, that his result was still awaited though, as a matter of fact, the
result had already been declared by that time and he had failed in the
LPA 740/2012 and WP(C) 5986/2012 Page 7 of 12
paper of Chemistry, having obtained 26% marks. The learned senior
counsel appearing for the appellant submitted that such a declaration was
made since the appellant had applied for revaluation of his marks in the
paper of Chemistry and the result of revaluation was still awaited. This
was countered by the learned senior counsel for the University, who
submitted that while filling up the application form, the appellant was
duty bound to declare the marks which had been awarded to him in
qualifying examination and there was a positive misrepresentation by the
appellant when he claimed that his result was still awaited. It was also
contended by the learned senior counsel for the University that the relief
in exercise of writ jurisdiction being a discretionary relief, should not be
exercised in favour of a person who concealed material facts and made a
positive representation to the University at the time of seeking admission
to the course.

We take note of the fact that the learned Single Judge refused
interim relief to the appellant only on account of the false declaration
made by him in the application form by withholding the marks obtained
by him in each subject and claiming that the result was still awaited.
However, considering the fact that, in our opinion, since no admission
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can be directed to an MBBS course, after 30th September and the
appellant will not be in a position to achieve the required percentage of
attendance in the said course, we need not take a view on this aspect of
the matter.

9. It transpired during the course of hearing before us that two
students, who were granted admission in management quota, did not meet
the eligibility requirement of 50% marks in the admission test and two
candidates did not appear at all in the entrance examination. These
students have been impleaded as respondents No. 10 to 13 in the writ
petition. A perusal of the list of students admitted in management quota
would show respondent Zara Khan and Sama Rizvi obtained less than
50% marks in the admission test. It appears that the respondents Mohd.
Aamir Hussain and Omer Ali Mohammed Alshear did not even appear in
the admission test. No marks have been disclosed in the admission test
against their names.

10. As per Regulation 5(5) of the Regulations framed by the Medical
Council of India for admission to the medical courses, the minimum
marks required in admission test are 50% in case of General Category
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candidates and a person belonging to General Category and securing less
than 50% marks is not eligible for admission to the said course.

It has been held by the Apex Court in various decisions, including
the Constitution Bench decision in Preeti Srivastava & Anr. vs. State of
M.P. & Ors. 1999 (7) SCC 120, that to obtain admission in MBBS course
not only has the candidate to appear in the entrance examination, he/she
also required to obtain the minimum marks, prescribed in MCI
Regulations.

In Chowdhury Navin Hemabhai and Ors. v. State of Gujarat and
Ors (2011) 3 SCC 617, Supreme Court noticing clause 5.5(ii) of MCI
Regulations, held that the candidate must secure the marks prescribed in
the said Regulation and even the State cannot prescribe qualifications
lower than those prescribed by the MCI.

In T.M.A. Pai Foundation And Others Vs State Of Karnataka
And Others, (1995) 5 SCC 220, Supreme Court held that even the
admission in NRI quota are required to be made in the order of merit.
Obviously, in terms of the Regulations framed by MCI, the merit in such
a case can be decided only on the basis of the admission test.
LPA 740/2012 and WP(C) 5986/2012 Page 10 of 12

11. MCI has taken a categorical stand before us that it is not open and
permissible for any private medical college/institution to give admission
to such candidates, who do not hold merit positions in Common Entrance
Test. Therefore, the admission of the above-referred four students, two of
whom did not appear at all in the Entrance Examination and the
remaining two did not obtain the requisite minimum marks, appears to be
in contravention of MCI Regulations.

12. Regulation 5 of MCI Regulations provides the method of selection
of students to Medical Colleges on the basis of merits of the candidates
and as held by the Supreme Court in Rajan Purohit and Ors.
v. Rajasthan University of Health Science and Ors. 2012 (8) SCALE 71,
the said regulation does not deal with eligibility of students for admission
to MBBS course. It is Regulation 4 which lays down the eligibility
criteria for admission to the medical course. This is not the case of the
petitioner/appellant that the aforesaid respondents do not fulfil the
eligibility criteria as laid down in Regulation 4. Supreme Court observed
in Rajan Purohit (supra) that there is a distinction between a candidate
not fulfilling the eligibility criteria for admission to the MBBS course and
the candidates who fulfil the eligibility criteria, but have not been
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admitted in accordance with the procedure for selection on the basis of
merit. In the aforesaid case, the Apex Court did not cancel the admissions
which had been made in violation of Regulation 5, but, confirmed to the
eligibility criteria laid down in Regulation 4, though penalty was imposed
by the Court on the college concerned in the form of directions for
surrender of certain seats and financial penalty was imposed on the
students who were admitted in violation of Regulation 5 of MCI
Regulations.

13. Considering the fact that there is no prayer in the writ petition for
quashing appointment of these four persons or directing any other action
against them, we refrain from passing any order with respect to their
admission and leave the matter to MCI, which shall be competent to take
such action as is open to it, in law, in this regard.

14. For the reasons stated hereinabove, we find no merit in the appeal
as well as in the writ petition and the both are hereby dismissed.